Citation Nr: 0937955
Decision Date: 10/06/09 Archive Date: 10/14/09
DOCKET NO. 08-24 719 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
Veteran's death.
2. Entitlement to accrued benefits.
3. Entitlement to non-service-connected death pension.
ATTORNEY FOR THE BOARD
E. I. Velez, Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appellant claims as the surviving spouse of the Veteran,
who served in the Philippine Commonwealth Army from September
1941 to January 1943, and from April 1945 to December 1945.
He was a Prisoner of War (POW) from May 1942 to January 1943.
The Veteran died in November 1989.
This matter comes before the Board of Veterans' Appeals
(Board) from a December 2007 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
The issue of entitlement to service connection for the cause
of the Veteran's death is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran had service in the Philippine Commonwealth
Army from September 1941 to January 1943 and from April 1945
to December 1945, and was a Prisoner of War (POW) from May
1942 to January 1943.
2. The Veteran died in November 1989.
3. The appellant filed the application for accrued benefits
in March 2007.
CONCLUSIONS OF LAW
1. The criteria for basic eligibility for VA non-service-
connected death pension benefits have not been met. 38
U.S.C.A. §§ 101(2), 107, 1502, 1521, 1541 (West 2002); 38
C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.41 (2009).
2. The claim of entitlement to accrued benefits lacks legal
merit. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. See 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a).
The U. S. Court of Appeals for Veterans Claims (Court) has
held that when the interpretation of a statute is dispositive
of the issue on appeal, neither the duty to assist nor the
duty to notify provisions of the VCAA are implicated. The
Court has recognized that enactment of the VCAA does not
affect matters on appeal from the Board when the question is
limited to statutory interpretation. Dela Cruz v. Principi,
15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App.
227, 231- 32 (2000).
Because the law and not the evidence is dispositive of the
issues of entitlement to accrued benefits and non-service
connected death pension, additional factual development would
have no bearing in the ultimate outcome. Accordingly, VCAA
has no effect in regards to the issues of entitlement to
accrued benefits and non-service connected death pension.
See Dela Cruz, supra; see also Manson v. Principi, 16 Vet.
App. 129, 132 (2002) (VCAA not applicable "because the law as
mandated by statute and not the evidence is dispositive of
the claim.")
Nonetheless, an April 2007 letter explained the evidence
necessary to substantiate the appellant's claim, the evidence
VA was responsible for providing, and the evidence she was
responsible for providing, and advised her to submit any
evidence or provide any information she had regarding her
claim.
Legal Criteria and Analysis
Death Pension
The appellant asserts that she should be awarded nonservice-
connected death pension benefits based on the Veteran's
service.
The surviving spouse of a veteran is entitled to receive VA
improved nonservice-connected death pension benefits if the
veteran had qualifying service under 38 U.S.C.A. § 1521(j).
Service in the Commonwealth Army of the Philippines is
included, for compensation, dependency and indemnity
compensation, and burial allowance, from and after the dates
and hours, respectively, when they were called into service
of the Armed Forces of the United States by orders issued
from time to time by the General Officer, U.S. Army, pursuant
to the Military Order of the President of the United States
dated July 26, 1941. Service as a guerrilla under the
circumstances outlined in paragraph (d) of this section is
also included. 38 C.F.R. § 3.40(c).
An AGUZ Form of August 1972 submitted by the National
Personnel Records Center in response to a Request for
Information of April 2007 shows that the Veteran had service
in the Philippine Commonwealth Army from September 1941 to
January 1943 and from April 1945 to December 1945, and was a
Prisoner of War (POW) from May 1942 to January 1943.
Persons with service in the Philippine Commonwealth Army,
USAFFE (U.S. Armed Forces, Far East), including the
recognized guerrillas, or service with the New Philippine
Scouts under Public Law 190, 79th Congress shall not be
deemed to have been in active military service with the Armed
Forces of the United States for the purpose of establishing
entitlement to VA nonservice-connected death pension
benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40.
Therefore, the Board finds that the appellant is not eligible
for the requested benefit; while the Veteran's service, as
described above, may be sufficient for certain VA purposes
(such as compensation), it is not the type of service that
can qualify a claimant for death pension in this case. As
the Veteran's recognized service does not confer eligibility
for nonservice-connected death pension benefits, the
appellant's claim must be denied as a matter of law. See
Sabonis v. Brown, 6 Vet. App. 426 (1994).
Accrued Benefits
Under 38 U.S.C.A. § 5121, a proper party is entitled to any
periodic monthly benefits under laws administered by the
Secretary to which the veteran was entitled at his death
under existing ratings or decisions, or those benefits based
on the evidence in file at the time of the veteran's death
which were due and unpaid preceding the veteran's death. See
38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Applications for
accrued benefits must be filed within one year after the date
of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).
In the instant case, the Veteran died in November 1989. The
appellant filed an informal claim for DIC benefits in
February 2007 and a formal claim in March 2007. This was
more than one year after her spouse's death. Therefore, the
Board concludes that the appellant's claim for accrued
benefits must be denied as a matter of law. See Sabonis,
supra.
The Board has carefully reviewed the entire record in this
case. However, this is a case in which the law is
dispositive; entitlement to accrued benefits is not
warranted. Therefore, entitlement to accrued benefits must
be denied.
ORDER
Entitlement to non-service connected death pension benefits
is denied.
Entitlement to accrued benefits is denied.
REMAND
The Veteran was a POW. The appellant asserts that service
connection is warranted for the cause of the Veteran's death.
A death certificate shows that the immediate cause of death
was cardio-respiratory arrest secondary to sepsis secondary
to paravertebral abscess. An Affidavit for Philippine Army
Personnel of December 1945 shows that the Veteran was treated
by an Army doctor for an injury or illness of the kidneys
from December 1942 to January 1943 while in POW status. The
Board notes that the actual dates in the affidavit are
December 1942 to January 1942, however, the Board believes
there was a typographical error.
VA has a duty to obtain a medical opinion when the record
contains competent evidence of a current disability,
indicates that such disability may be associated with active
service, but does not contain sufficient information to make
a decision on the claim. 38 U.S.C.A. § 5103A (d) (West
2002); 38 C.F.R. § 3.159(c) (4); see also McLendon v.
Nicholson, 20 Vet. App. 79 (2006). As noted above, sepsis
was listed as an antecedent cause of death. There is no
medical opinion of record which addresses if there is any
relationship between the noted kidney problem in service and
sepsis, one of the noted causes of the Veteran's death. In
the Board's opinion, such opinion is required in this case
because the medical evidence currently of record is not
sufficient to decide the claim.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
The AOJ should arrange for the
Veteran's claims folder to be reviewed
by an appropriate VA examiner. After
his or her review, the examiner must
opine as to whether the noted in
service kidney problem or any other
incident of service played any role in
causing/contributing to cause the
Veteran's death. The examiner should
specifically comment as to whether the
Veteran's kidney problems noted in
service could have led to the sepsis
noted as the antecedent cause of death.
The claims folder must be made
available to the examiner for review of
the case. The complete rationale for
all opinions expressed, should be set
forth in the examination report. If an
opinion cannot be provided without
resorting to speculation, the examiner
must so state and explain the reason
why.
If upon completion of the above action the claim remains
denied, the case should be returned to the Board after
compliance with requisite appellate procedures. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs